208 F.3d 13 (2nd Cir.

2000)

KEVIN SMITH, Petitioner-Appellant,

v.
MICHAEL McGINNIS, Superintendent, Southport
Correctional Facility, Respondent-Appellee.
Docket No. 99-2227
August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Argued: December 1, 1999
Decided: March 13, 2000

Appeal from judgment of the United States District Court for the Eastern
District of New York (Dearie, Judge) dismissing appellant's petition for a
writ of habeas corpus as untimely pursuant to the Antiterrorism and
Effective Death Penalty Act ("AEDPA"), 28 U.S.C. 2244(d). Because the
district court correctly applied the AEDPA's tolling provision and properly
calculated the limitations period, we affirm.
Affirmed.
ROBERT J. BOYLE, New York, NY, for Petitioner-Appellant.
ROSEANN B. MacKECHNIE, Assistant District Attorney, (Charles J.
Hynes, Kings County District Attorney, Amy Appelbaum, Assistant
District Attorney, on the brief) Brooklyn, NY, for Respondent-Appellee.
Before: POOLER, McLAUGHLIN, and SACK, Circuit Judges.
PER CURIAM:

Kevin Smith appeals from the March 26, 1999, judgment of the United States
District Court for the Eastern District of New York (Raymond J. Dearie, J.)
dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C.
2244(d).

BACKGROUND
2

A Kings County jury convicted Smith in 1987 of second-degree murder and

second- and third-degree criminal possession of a weapon. Smith pursued direct
appeals, all of which were unsuccessful, and his conviction became final on
July 2, 1991.1 In 1988 and 1992, Smith filed motions pursuant to N.Y. Crim.
Proc. L. 440.10 to vacate his judgment of conviction, but state courts denied the
relief. On May 1, 1997, Smith filed a petition for a writ of error coram nobis in
state court. Smith served the petition on April 23, 1997. The coram nobis
petition contained a claim regarding denial of effective assistance of appellate
counsel. The state court denied the petition on November 17, 1997. Shortly
thereafter, on February 12, 1998, Smith filed his federal habeas corpus petition
raising the same ineffective assistance of appellate counsel claim.

By memorandum and order dated March 17, 1999, Judge Dearie dismissed the
federal petition as untimely pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"). Smith v. McGinnis, 49 F. Supp.2d 102
(E.D.N.Y. 1999). Judge Dearie rejected Smith's argument that the applicable
one-year statute of limitations ran from the date the state court denied his
coram nobis petition. See id. at 104-05. The district court also held that Smith
"was not diligent in pursuing state remedies." Id. at 105. Judge Dearie granted
Smith a certificate of appealability on May 28, 1999. This appeal presents
questions of law that we review de novo.

DISCUSSION
I. Calculation of tolling period
4

Petitioner-appellant presents a question of first impression in this circuit,

namely whether the one-year limitations period in the AEDPA began on the
date he exhausted state collateral review or merely tolled while his state
application was pending. Specifically, Smith contends that the ineffective
assistance of appellate counsel claim presented in his state coram nobis and
federal habeas corpus petitions did not accrue until the state court denied relief
on November 17, 1997. Smith therefore argues that the one-year period in
which he had to file his federal habeas petition began on November 17, 1997,
and his February 12, 1998, federal petition was timely. The district court
correctly rejected Smith's effort to reset the one-year limitations period. In
affirming the decision of the district court, we align ourselves with our sister
circuits that have addressed this issue.

In general, the AEDPA restricts the ability of prisoners to seek federal review

In general, the AEDPA restricts the ability of prisoners to seek federal review
of their state criminal convictions. Section 2244(d) created a new one-year
statute of limitations in which state prisoners could file applications for a writ
of habeas corpus. 28 U.S.C. 2244(d)(1). The one-year period most generally
runs from the date on which the state criminal judgment became final. See 28
U.S.C. 2244(d)(1)(A). Prisoners like Smith, whose convictions became final
prior to the AEDPA's effective date of April 24, 1996, have a one-year grace
period in which to file their habeas corpus petitions, or until April 24, 1997. See
Ross, 150 F.3d at 102-03. Section 2244 also has a tolling provision that applies
to both the statute of limitations and the one-year grace period. See Bennett v.
Artuz, 199 F.3d 116, 119 (2d Cir.1999) (holding that "AEDPA's pending-statepetition tolling provision does apply to a petition challenging a pre-AEDPA
conviction"), petition for cert. filed, __ U.S.L.W. __ (U.S. Jan. 24, 2000) (No.
99-1238). Section 2244(d)(2) states: "The time during which a properly filed
application for State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be counted toward any
period of limitation under this subsection." 28 U.S.C. 2244(d)(2).

Smith's appeal concerns the proper application of the tolling provision and
calculation of the one-year grace period. There is no dispute that because
Smith's conviction became final in July 1991, before the effective date of the
AEDPA, he obtained the benefit of the one-year grace period and had until
April 24, 1997, to file a federal habeas corpus petition. There also is no dispute
that his state coram nobis petition, if pending within that one-year grace period,
would trigger Section 2244(d)(2)'s tolling allowance. 2 For the purposes of this
appeal, we assume that Smith filed his coram nobis petition in time to trigger
Section 2244(d)(2)'s tolling provision. The primary issue before us, therefore,
is the proper calculation of tolling. Smith contends that he should receive one
year from the date on which the state court denied his coram nobis petition.
Respondent advocates a different calculation: (1) the one-year grace period ran
for 364 days, until Smith filed the coram nobis petition; (2) the approximately
208-day period during which the coram nobis petition was pending is excluded;
(3) the one-year grace period resumed running on November 17, 1997, when
the state court denied Smith's petition; (4) Smith therefore had one day
remaining in his grace period in which to file the federal habeas petition, or
until November 18, 1997. Under this calculation, Smith's February 12, 1998,
federal habeas petition was approximately 86 days late.

Other circuit courts of appeals considering this issue uniformly have adopted
the interpretation that respondent advocates. See Nino v. Galaza, 183 F.3d
1003,1006-07 (9th Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3368 (U.S.
Nov. 16, 1999) (No. 99-899); Gaskins v. Duval, 183 F.3d 8, 9-10 (1st Cir.
1999); Haney v. Addison, 175 F.3d 1217, 1220-21 (10th Cir. 1999); Fisher v.

Johnson, 174 F.3d 710, 712 (5th Cir. 1999); Guenther v. Holt, 173 F.3d 1328,
1331 (11th Cir. 1999), cert. denied, 120 S. Ct. 811 (2000). The case upon
which Smith relies, Lovasz v. Vaughn, is consistent with this precedent because
it concerns a prisoner who filed state collateral review papers before the grace
period even had begun to run, tolling the one-year statute of limitations while
the petition was pending rather than resetting the limitations period. See Lovasz
v. Vaughn, 134 F.3d 146, 149 (3d Cir. 1998). The Southern District of New
York case that Smith claims supports his interpretation issued before our
decision in Ross v. Artuz clarified calculation of the statute of limitations period
for prisoners whose convictions became final before the AEDPA became
effective. See Valentine v. Senkowski, 966 F. Supp. 239, 241 (S.D.N.Y. 1997).
In any event, even though the opinion itself contains broad language favoring
Smith's position, the prisoner's habeas petition in Valentine would have been
timely pursuant to the calculation respondent advocates. See id. at 240-41.
District courts in this circuit routinely have adopted respondent's interpretation
of tolling calculation. See Torres v. Miller, 1999 WL 714349 *3-4 (S.D.N.Y.
Aug. 27, 1999); Lucidore v. New York State Div. of Parole, 1999 WL 566362
*4 (S.D.N.Y. Aug. 3, 1999); Irving v. Artuz, 1999 WL 592665 *3 (E.D.N.Y.
July 29, 1999). We find unpersuasive Smith's argument that respondent's
interpretation would result in premature state applications for relief. The
AEDPA takes into consideration circumstances, such as the discovery of new
facts, that reset the statute of limitations. See 28 U.S.C. 2244(d)(1).
8

We therefore hold that proper calculation of Section 2244(d)(2)'s tolling

provision excludes time during which properly filed state relief applications are
pending but does not reset the date from which the one-year statute of
limitations begins to run. Not only is this interpretation uniformly followed in
other circuits, but it also comports with the goal of the AEDPA to prevent
undue delays in federal habeas review. If the one-year period began anew when
the state court denied collateral relief, then state prisoners could extend or
manipulate the deadline for federal habeas review by filing additional petitions
in state court. The district court therefore correctly dismissed Smith's habeas
petition.
II. Equitable tolling

Smith argues in the alternative that we should exercise our equitable powers to
excuse his delay in filing his federal habeas petition. The state responds that
even assuming equitable tolling applies, Smith did not meet the high threshold
for obtaining this relief because he did not act diligently to pursue his
ineffective assistance of appellate counsel claim in either state or federal court.

10

We have not determined whether equitable tolling applies to the one-year statue
of limitations contained in Section 2244(d) or the grace period announced in
Ross v. Artuz. However, other circuits considering this issue uniformly have
held that the one-year period is a statute of limitations rather than a
jurisdictional bar so that courts may equitably toll the period. See Calderon v.
United States Dist. Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc),
cert. denied, 119 S. Ct. 1377 (1999); Davis v. Johnson, 158 F.3d 806, 811 (5th
Cir. 1998), cert. denied, 119 S. Ct. 1474 (1999); Miller v. New Jersey State
Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998); Miller v. Marr, 141
F.3d 976, 978 (10th Cir.), cert. denied, 119 S. Ct. 210 (1998). We join our
sister circuits and also adopt this rule.

11

Equitable tolling applies only in the "rare and exceptional circumstance[]."

Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, 120 S. Ct. 504
(1999). In order to equitably toll the one-year period of limitations, Smith must
show that extraordinary circumstances prevented him from filing his petition
on time. See Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (noting that
this court has applied equitable tolling doctrine "'as a matter of fairness' where a
plaintiff has been 'prevented in some extraordinary way from exercising his
rights. . . .'") (citation omitted). In addition, the party seeking equitable tolling
must have acted with reasonable diligence throughout the period he seeks to
toll. See id.

12

Smith claims that he is entitled to equitable relief because (1) he could not file
his federal petition until he exhausted his state remedies; and (2) he diligently
filed his state coram nobis petition and then filed his federal habeas petition
only 87 days after the state denied collateral relief. Petitioner-appellant raised
both of these arguments in the district court. Smith's case does not present
extraordinary or exceptional circumstances warranting equitable tolling.
Smith's delays in seeking collateral review of his conviction do not show
reasonable diligence. In addition, the tolling provision of Section 2244(d)(2)
already accommodates the exhaustion requirements that prisoners face, so the
mere fact that Smith exhausted his claims in the coram nobis petition does not
trigger equitable tolling. Finally, Smith's pro se status until March 1997 does
not merit equitable tolling. See Turner, 177 F.3d at 392. Smith's petition
therefore was not timely.

CONCLUSION
13

For the foregoing reasons, we affirm the judgment of the district court. We
have considered all of appellant's remaining arguments and find them without
merit.

Notes:
1

July 2, 1991, was the expiration of the time in which Smith could seek a writ of
certiorari from the United States Supreme Court. See Ross v. Artuz, 150 F.3d
97, 98 (2d Cir. 1998) (holding that petitioner's conviction became final for
AEDPA purposes when his time to seek direct review in the United States
Supreme Court expired).

Respondent argues that Smith does not get the benefit of tolling because he
actually filed the coram nobis petition on May 1, 1997, which is after the oneyear grace period ended. See Jackson v. Dormire, 180 F.3d 919, 920 (8th Cir.
1999) (per curiam) (holding that Section 2244(d)(2) did not apply where
petitioner whose conviction became final prior to effective date of AEDPA did
not file state motion until May 2, 1997). In support of its argument in favor of
the May 1 filing date, respondent relies on Rule 2102 regarding the filing of
papers with the clerk of the court. N.Y.C.P.L.R. 2102 (McKinney 1997). Smith
contends that his petition should be deemed filed on April 23, 1997, the date he
served the papers on the district attorney. Judge Dearie noted the discrepancy
between the filing and service dates and seemed to adopt Smith's date of April
23. See Smith, 49 F. Supp.2d at 103-04. Because Smith's federal habeas
petition is untimely using either date, resolution of this issue is not necessary.